抵押物转让中买受人的权益保护

发布时间：2019-04-27 06:33

【摘要】：抵押是我国担保法中规定的一种重要的担保方式,其在市场交易活动中具有举足轻重的地位。实践中,抵押制度主要涉及不动产与动产抵押物的转让问题。所谓抵押物的转让,是指作为债务人的抵押人为了担保债权人的债权的实现在某财产上设定抵押,随后又对该抵押物自由处分,将其转让给买受人的行为。抵押物转让后,在抵押权人与抵押物买受人之间往往会产生利益冲突,如何保障交易安全,维护其合法权益都是需要法律制度来维护的。我国抵押物的转让制度主要体现在《物权法》第191条之中,但是该法条的规定并不科学。本文先从我国目前的抵押物转让的现实状况入手,再结合主要的大陆法系国家如德国、法国和日本关于抵押物的转让问题中所涉及的典型的制度模式,期望对我国的抵押物转让制度中买受人的利益保护有一定的启发。本文主要分为三部分:第一部分主要是通过《物权法》第191条的规定对我国目前抵押物转让方面存在的问题的概述。我国对抵押物转让采取的是要经过抵押权人同意的限制模式,该模式存在虽然有一定的合理之处,但限制抵押人转让抵押物的规定不仅没有必要而且是有很多弊端的;受让人的代位清偿制度存在缺陷,该制度适用范围是有限的,而且《物权法》中关于替代清偿制度态度也很不明确。我国目前的抵押物转让制度中没有专门规定抵押物转让中买受人的救济或保护机制,对抵押物买受人保护的缺失,影响了正常的交易安全。第二部分重点是对国外抵押物买受人权益保护方法的分析。如法国的涤除权制度,日本的涤除权制度、抵押权消灭请求制度以及既承认抵押权的追及效力又规定先取特权的“双重主义”立法模式,德国允许抵押物的自由流通转让以及完善的抵押权登记公示制度。第三部分提出在抵押物转让中如何保障善意买受人权益的建议。放宽对抵押物转让的限制是基于立法价值的选择,不动产统一登记制度对抵押物买受人权利的保护具有重要意义,是市场经济发展的必然要求,也是实务经验的结果。从涤除权制度产生的原因以及运作情况、物权变动模式与法律传统的差异分析出涤除权制度在我国不适用,没有必要引进,在动产抵押物转让中可以采用“先代位后追及”的制度构造等。
[Abstract]:Mortgage is an important guarantee mode stipulated in China's guarantee law, and it plays an important role in market transactions. In practice, the mortgage system mainly involves the transfer of real estate and chattel collateral. The so-called transfer of collateral refers to the act that the mortgagor as the debtor establishes a mortgage on a property for the purpose of securing the creditor's claim and then freely dispenses the mortgaged property and transfers it to the buyer. After the transfer of mortgaged property, there will often be conflicts of interest between mortgagee and mortgagee. It is necessary to protect the legal rights and interests of the mortgagee in order to protect the security of transactions and the legal rights and interests of the mortgagee. The transfer system of mortgaged property in our country is mainly embodied in Article 191 of property Law, but the provisions of this Law are not scientific. This article starts with the current situation of the transfer of collateral in our country, and then combines the typical institutional models involved in the transfer of collateral in the major civil law countries such as Germany, France and Japan. It is expected to give some inspiration to the buyer's interest protection in the mortgage transfer system of our country. This paper is divided into three parts: the first part is a summary of the problems existing in the transfer of mortgaged property in China through the provisions of Article 191 of the property Law. In our country, the transfer of mortgagee is restricted by the consent of the mortgagor. Although there are some reasonable points in this mode, the regulation of restricting the transfer of mortgagee is not only unnecessary but also has many disadvantages. The system of subrogation of assignees has defects, the scope of application of the system is limited, and the attitude of alternative settlement system in the property Law is not clear. There is no special relief or protection mechanism for the buyer in the transfer of collateral in the current mortgage transfer system in our country. The absence of protection to the buyer of the mortgage affects the normal security of the transaction. The second part focuses on the analysis of foreign collateral buyer's rights and interests protection methods. Such as France's elimination system, Japan's removal system, mortgage elimination claim system, and the "dualism" legislative model that recognizes the effectiveness of mortgage rights and provides for pre-emptive privileges, as well as a "dualistic" legislative model that recognizes the effectiveness of mortgage rights and provides for pre-emptive privileges. Germany allows the free circulation of collateral transfer and a sound mortgage registration public system. The third part proposes how to protect the interests of bona fide buyers in the transfer of collateral. The relaxation of the restriction on the transfer of mortgaged property is based on the choice of legislative value. The unified registration system of real estate is of great significance to the protection of the rights of buyers of mortgaged property. It is the inevitable requirement of the development of market economy and the result of practical experience. From the reason of the system of eliminating right and its operation, the difference between the mode of change of property right and the tradition of law, it is concluded that the system of eliminating right is not applicable in our country, and there is no need to introduce it. In the transfer of chattel collateral, the system structure of "subrogation and pursuit" can be adopted.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2

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